p220
Chapter XV

Spanish Colonial Government and Administration
(1493‑1821)

The legal relation between Spain and her American dominions was strikingly like that which the promoters of the American Revolution maintained to be the proper relation between England and her colonies. James Madison, in 1800, wrote "The fundamental principle of the Revolution was that the colonies were co-ordinate members with each other and with Great Britain of an empire united by a common executive sovereign":1 so far the description exactly applies to the relations between Castile and New Spain and Peru. "The legislative power," Madison goes on to say, "was maintained to be as complete in each American parliament as in the British Parliament." Similarly, legislative detachment and co-ordination existed in the Spanish Empire; but since neither Spain nor the Spanish colonies enjoyed self-government, there was no question of parliamentary supremacy. The laws of Castile were made by the king with the advice
p221of his councils; and the laws of Spanish America were made by the king through the Council of the Indies. In fine, Spanish America did not belong to Spain, but was a part of the hereditary domains of the sovereigns of Castile as heirs of Queen Isabella, with which the cortes of Castile had little more to do than with the kingdom of Naples or the Netherlands.

That English political institutions were transplanted to America by the colonists is one of the most familiar as well as one of the most fundamental facts in our history. That contemporary Spanish institutions and the general machinery of government were likewise transplanted and adapted to Spanish-American conditions is less familiar but not less important.

The first step in framing an administrative system for the government of their new possessions was taken by the sovereigns in May, 1493, when they appointed a member of their council, Juan de Fonseca, archdeacon of Seville, to act with the admiral in making preparations for a second voyage.2 For the next ten years, until the establishment of the Casa de Contratacion, and, in fact, during the entire reign of Ferdinand and Isabella, Fonseca was practically the colonial minister and zealously guarded the interests of the crown. His character has been blackened by the partial biographers of Columbus, who have followed the lead of Ferdinand
p222Columbus and of Las Casas; but though some of his appointments were bad, and he was opposed to some of the plans of Columbus and to the policy of Cortés, he retained the confidence of his sovereigns, who steadily promoted him. Bernaldez, the curate of Los Palacios, the friend and host of Columbus, tells us that Fonseca deserved his promotions and that he sustained all his dignities worthily.3

The second decade of Spain's colonial administration opens with the establishment at Seville, the mercantile capital of Castile, of the Casa de Contratacion, "at once a board of trade, a commercial court, and a clearing-house for the American traffic."4 In its earliest form this body consisted of a treasurer, an auditor, and a factor or manager. The casa, or house, was to contain ample stores of the commodities to be shipped to the Indies, and its officials were to exercise close supervision over all commerce with the Indies, Barbary, and the Canaries, to select proper captains for the ships, and to keep themselves informed regarding conditions in the Indies and ways of extending trade.

In a measure, this ordinance formally established what had been gradually growing up under Fonseca and his assistants.5 As subsequently developed, the
p223Casa de Contratacion consisted of the president, the treasurer, the auditor, and the manager — the four bearing the title of "judges ex officio" — three assistant judges, and the attorney-general, and a steadily growing body of subordinate officials, among whom may be noted a high-sheriff, inspector-general, pilot-major (to examine and license pilots), the postmaster-general ("correo mayor"),6 etc.

In 1552 a professorship of cosmography and navigation was established under the control of the casa, and all candidates for the office of pilot were obliged to take the courses of study provided in these subjects.7 A regulation of great importance to science, established by Philip II, was the requirement that all pilots and ship-masters should keep an accurate daily record of their course, of the weather, and of the ocean currents, as well as a precise description of all shores coasted, etc., which were to be deposited with the pilot-major in Seville.8 The efficiency of this institution became widely known, and it was imperfectly imitated by Henry VIII of England in the incorporation of the association called the Trinity House, at Deptford, in 1512,9 which is still in existence, although its most important functions were taken over in 1853 by the Board of Trade.10

p224
The variety of the political questions presented by the organization of the Spanish possessions in the New World led gradually to the formation of a new royal council, which took its place beside the Council of Castile, the Council of State, and the other royal councils. At first these matters had been considered by the sovereigns in consultation with Bishop Fonseca. In 1507 Governor Ovando and the officials of the Casa de Contratacion were ordered to confer with Fonseca and Lope de Conchillos, the king's secretary in Indian affairs.11 These two men continued in charge for several years, consulting in cases of some difficulty informally with other members of the king's council.12 It would appear that as early as 1509 their decisions were recorded as those of the Council of the Indies.13

With the accession of King Charles I (Emperor Charles V) a nucleus of the more extensive council later established was formed in 1517 with seven members, among whom were Fonseca, Francis de los Cobos, one of Charles's ablest ministers, and Peter Martyr, the first historian of America. In this group Fonseca's influence was paramount.14 The formal organization of this body as a permanent independent
p225council in distinction from a varying group of advisers on Indian affairs dates from August 4, 1524. At its head was placed Garcia de Loaysa, the general of the Dominican order and the king's confessor. In October, when the king was ill with the quartan fever, he authorized the council to despatch all matters relating to justice without waiting to consult him.15

In 1542 and later the composition of the council was specified in detail. The high chancellor of the Indies was to be president; the number of ordinary councillors who were lawyers might be enlarged as business grew, but should be eight for the present; an attorney and two secretaries, and a deputy of the high chancellor came next in order. All these were to be of noble birth, pure lineage, and God-fearing. In addition there were to be three reporters and a clerk, four expert accountants, a treasurer, two treasury solicitors or attorneys, an historian,16 and a cosmographer and mathematician, a judge to appraise damages, an advocate, a proctor of the poor, a chaplain, four ushers, and a sheriff.17

To this body was intrusted the supreme legislative and judicial control, under the king, of Spanish America. It was to meet twice daily except on church holidays, three hours in the morning and two in the afternoon; and the different branches of
p226business had each its allotted week-day. Business might be divided among "halls" or committees, but legislation of general importance must be acted on in full council and required a two-thirds vote for passage. The council was to use all available means to accumulate information about the Indies so that action would be based on knowledge.18 It was also felt to be desirable, although not enforced by law, that some of the members of the council should have seen official service in the Indies so as to be able to give advice based on experience. Besides making the laws for the New World and serving as the final court of appeal, the council served as an advisory or nominating board in regard to all civil and ecclesiastical offices in the Indies.19 The literary monument of nearly two centuries of its activity is the great Recopilacion de Leyes de los Reinos de las Indias, a body of law which, in spite of shortcomings as to finance and variances with modern ideas, is, in its broad humanity and consideration of the general welfare of the king's American subjects, far superior to anything that can be shown for the English or French colonies.20

In the history of English colonial policy in the
p227eighteenth century the Board of Trade and Plantations, in its advisory and judicial functions, suggests some comparison with the Spanish Council of the Indies, but it was a much weaker and less effective body. In name the English India Council of our own day challenges a comparison with its Spanish prototype, but its similarities are on the whole superficial: it is mainly advisory in character, has no power of initiation, and only a very limited power of veto. The making of laws, which was so important a part of the work of the Spanish council, under the English system for India falls to the lot of the governor-general and his council, as specially expanded for the purpose.21

Turning now to the Spanish organization in America, we observe a general disposition to adjust the existing machinery of Spanish administration to the problem of governing the colonies, just as it was the policy of the crown to assimilate the laws of the Indies as far as possible to those of Spain.22 In 1507 the towns in Española sent two delegates to Spain to petition the king for the privileges possessed by municipalities in Spain.23 The request was granted, and in addition coats of arms were bestowed upon fourteen towns. A court independent of the governor was established in 1510 to hear appeals from the decisions of the governor's justices.
p228This may be taken as the beginning of the Audiencia, or supreme court, of Española, a body which also became the mouth-piece of colonial needs by presenting memorials to the Council of the Indies.24

It is particularly interesting to find conventions of the proctors or delegates of the towns, meeting to take common action for pressing their needs. For example, in 1518 the proctors of the town met and petitioned for freer commerce with Spain.25 By 1540 such meetings were annual in Cuba.26 In 1542 this inchoate cortes petitioned the king that each householder might import four negroes free of duty.27 In 1530 Charles V accorded the city of Mexico the first place in New Spain and the first vote in the congresses "that meet by our command. Without our command it is not our intention or will that the cities and towns of the Indies meet in convention."28 The whole drift of Spanish political life in the sixteenth century, however, was towards the strengthening of the power of the crown and the loss by the cortes of its legislative function; and traces of an opposite tendency in America were sporadic and temporary. The government of Spanish America was pre-eminently monarchical, and a consideration of its political machinery may well begin with the
p229representative and counterpart of the king, the viceroy.

In the year 1574 the Spanish-American world was officially described as consisting of two kingdoms: New Spain, comprising the main-land and islands north of the isthmus, and also that part of South America which is now Venezuela; and Peru, comprising the isthmus and all the territory from New Spain to Patagonia except Brazil. The kingdom of New Spain was subdivided into four audiencias, or supreme court districts, and seventeen or eighteen "governments." The court districts were Mexico, Española, including the other islands and Venezuela, New Galicia, and Guatemala. The viceroyalty of Peru contained five audiencias — Lima, Los Charcas, Quito, New Granada, and Panama — and ten governments.29

The viceroy was the personal representative of the king, and was to govern and labor for the welfare of the king's subjects and vassals as he would do if present in person.30 Over seventy laws in the Recopilacion are devoted to specifying his duties, and a conscientious ruler found it a position of arduous labor and trying responsibility.31 The fourth viceroy, Don Martin de Enriquez, informed his successor that he was expected to be the father
p230of the people, the patron of monasteries and hospitals, the protector of the poor, and particularly of the widows and orphans of the conquerors, and the old servants of the king, all of whom would suffer were it not for the relief afforded them by the viceroy.32 It was the duty of the outgoing viceroy to draw up a general report embodying information and counsel for his successors. These reports constitute to-day one of our most complete and trustworthy sources of knowledge.33

The normal term of office was three years, lengthened in the eighteenth century to five, but it could be extended or shortened by the king.34 The first two viceroys reigned fifteen and fourteen years respectively. From 1535 down to 1821 sixty-two viceroys held the office. In the seventeenth century the salary of the viceroy of New Spain was twenty thousand ducats and that of the viceroy of Peru thirty thousand ducats.35 In the middle of the eighteenth century the salary of the viceroy of Mexico was fixed at sixty thousand pesos, twelve thousand of which he was expected to devote to his captain-general.36 The increase was more nominal
p231than actual, owing to the gradual fall in the value of money. As appears from the difference in the salary, the viceroyalty of Peru ranked as a higher dignity than that of New Spain, and successful viceroys of New Spain were often promoted to Peru.37

As the Spanish rule extended in America, the great distances required additions to the number of independent governments; of these two were viceroyalties, New Granada (created in 1717) and Buenos Ayres (1778); the other and lesser divisions, styled captaincies-general, were Guatemala (1527), Venezuela (1773, Cuba (1777), Chili (1778). The powers and duties of the captain-general were similar to those of the viceroy; he was the king of a smaller kingdom. In Venezuela his term of office was usually seven years and his salary nine thousand pesos.38

At the expiration of their term of service all administrative officers had to undergo a "residencia," an inquest into their conduct in office. One or more commissioners appointed for the purpose opened a court, at which all persons with grievances or injustice to complain of against the outgoing official could press their charges. The residencia for a viceroy was limited to six months. The commissioner then prepared his report of the hearing, and the
p232papers were forwarded to the Council of the Indies for the final decision. This method of enforcing responsibility was of varying efficacy. Depons, who lived several years in Caracas, said, "I resign all criticism on its operation to those who know the conductive influence of Plutus over the feeble and pliant Themis."39 A viceroy of Peru compared the residencia "to the whirlwinds which we are wont to see in the squares and streets, that serve learn to raise the dust, chaff, and other refuse and set it on our heads."40 Sometimes favor at court exempted a viceroy from a residencia.41

The only other check on the arbitrary powers of the viceroy was that exercised by the appropriate audiencia, which combined the functions performed in Spain by the chanceries of the different kingdoms and by the Council of the Indies. The audiencia was therefore, at the same time, the viceroy's or governor's council and the highest colonial court of appeal. The number of these bodies gradually increased until Philip IV, in the seventeenth century, divided his dominions beyond the sea into twelve audiencias — Santo Domingo, Mexico, Panama, Lima, Guatemala, Guadalajara, Bogotá, La Plata, Quito, Manila, Chili, Buenos Ayres. The executive in these lesser subdivisions was the governor and captain-general,
p233who was ex officio president of the audience. The number of members of the audience depended upon its position and importance. The royal audience of Mexico, for example, consisted of eight auditors (oidores), or judges, four alcaldes de crimen (criminal judges), and two prosecuting attorneys, one for civil, the other for criminal cases, a sheriff, etc.42 In the subordinate audiences the number of auditors was less and they served as criminal judges as well.43

As a council the audience deliberated with its president, or, in Mexico and Peru, with the viceroy, on appointed days, in regard to the more weighty and perplexing questions of government. Such a session was called an "acuerdo."44 The executive, however, had no vote in matters of justice, but he could determine whether a question was really one of justice or political in character.45 Persons who felt themselves wronged by any act or decision of the viceroy could appeal to the audience.46 The subordinate audiences could communicate independently of their president to viceroy, and the principal or royal audiences equally independently to the king. If a vacancy occurred in the viceroyalty or government the audience assumed the administration.
p234In questions involving sums under six thousand pesos the decision of the audience was final; in matters of greater import an appeal could be carried to the Council of the Indies.

Every three years one of the auditors was to be delegated by the viceroy or president to make a tour of inspection throughout the entire district, to inform himself as to the economic condition of the people, as to the number of churches and monasteries necessary to provide for their good, as to whether the Indians were lapsing into idolatry, as to the conduct of the corregidors, whether the slaves in the mines were instructed, whether the Indians were enslaved or employed as freight-carriers, whether the drugs in the apothecary shops were pure, etc.47 Extraordinary precautions were taken to detach the auditors from social connections or business relations which would impair their impartiality.48

The administrative subdivisions of the audiences were the "gobiernos," or governments, the "corregimientos," and the "alcaldias mayores."49 The executives for these local governments were appointed
p235by the crown, but ad interim appointments could be made by the viceroy.50

It was only in the colonial towns, both Spanish and Indian, that there existed some degree of self-government. The conquerors often established municipal governments of their own initiative in a way that reminds one that self-government might have grown up spontaneously in Spanish America if the arm of the home government had not been so long. Thus in Darien the colonists established a municipality and elected Balboa alcalde in 1510.51 Again, when the followers of Cortés founded Vera Cruz they elected the alcaldes and regidores making up the town council, a chief of police (alguacil mayor), treasurer, etc.52

In 1523 it was enacted that in founding new towns the citizens might elect the regidores unless the right to nominate them had been accorded to the commander of the colony; and this privilege was confirmed by Philip II.53 But since in Spain the town councils had been changed from a body elected by the citizens to be a close corporation, permanent membership in which was inherited or purchased,54p236the cabildos, or municipal councils, of Spanish America took the same course. Those in ordinary places had normally six regidores, or aldermen, and two alcaldes, or justices, elected by regidores each year.

In the larger cities the number of regidores was greater, and they were divided into different classes. For example, in Santiago, Chili, in the first half of the eighteenth century, the cabildo consisted of six regidores, part of whom inherited and part had purchased the dignity, two alcaldes, one alferez real (royal ensign), one alguacil mayor (sheriff), and a depositary or trustee of trust funds.55 In Caracas, in Depons' time, the cabildo consisted of the governor ex officio, two alcaldes, twelve regidores whose positions could be bought or sold, four other regidores nominated by the king from among the Spaniards resident in the town,56 and four other officers, the alferez real, alcalde mayor, alguacil mayor, and fiel executor (sealer of weights). These last offices were purchasable.57 At the close of the colonial period the cabildo of the city of Mexico consisted of fifteen permanent regidores, whose dignity was entailed, who elected each year two alcaldes and every two years six honorary regidores, including a syndic, from prominent business-men or property owners.58 It was in the cabildos only of all the
p237machinery of government that the Spanish creoles had a prominent or controlling share.

The functions of the cabildo embraced the ordinary duties of the town council — local legislation, sanitary and humane regulations, etc.59 In Castile the cortes had come to consist mainly of the procuradores (proctors), or delegates of the cities. The initial steps in the development of what might have become colonial cortes have already been noticed, as well as the opposition of Charles V to any such tendency. The institution of proctors of the towns, however, continued to exist with narrowly defined functions. In the sixteenth century the towns in the New World were authorized to elect proctors to represent their interests before the Council of the Indies. In the seventeenth they were to empower resident agents in Spain to look after such matters. These elections or commissions proceeded from the regidores of the towns.60 In general, these proctors of the towns may be compared with the agents maintained in London by the English colonies and even by the town of Boston.

One feature of the administrative system which now seems strange and unsuitable was the purchase and sale of offices. One of the regular branches of the royal revenue was the income derived from the increase in public offices as the king's domains in the New World expanded, which from 1557 on was a
p238regular part of the governmental system. The principal offices that were offered for sale and for which bids were received were those of sheriffs, city and court clerks and notaries, proctors, depositaries, ensigns, regidores, treasurers, sealers of weights and measures, assayer.61 In 1620 it was enacted that the office of regidor should be no longer filled by election or lot, but that bids should be called for the officials of the royal treasury during a period of thirty days, and that the persons to whom the award was made should possess the requisite qualifications for the office, giving the preference to the conquerors, the first settlers, and their descendants.62

This system offered opportunity for a successful business-man to become a member of the official class, thereby improving his social station and securing a permanent position for his family. The office conferred distinction, and the income from it would be a secure form of investment. The system is, of course, repugnant to present-day ideas, but it was not so in the seventeenth and eighteenth centuries. In fact, it secured the positive approval of the most eminent writer on comparative politics who knew it at first hand.63 It is the opinion of Bancroft that the policy of salable offices "does not appear to have been attended with so many evils as might have been expected."64 Indeed, the system
p239had many advantages over the practice of paying a heavy assessment to a party machine for a nomination and the chance of being elected. To most Americans to-day the letting out of public work by private contracts to the lowest bidder seems natural and a sound business policy. Perhaps in a century or soa it may seem as strange to let out the paving of a street to a contractor as to call for bids for a county clerkship.

That the Spanish colonies were oppressed and exploited by the mother-country is a widely spread opinion. The well-known fact that the king derived a large net revenue from his American dominions is in itself no evidence of oppression or exploitation. Not to do so would have been a proof of extraordinarily bad finance, for the source of the net revenue was the king's royalty of one-fifth of the yield of the gold and silver mines. That the state should receive a part of the pure rent of such natural monopolies rather than it should be entirely appropriated by the lucky prospector commends itself to-day to an increasing number of people. It was calculated in the latter half of the eighteenth century that the fifth of the annual product of the mines was about $7,425,000, and that the king's net revenue from America was about $6,750,000.65

The main sources of government revenue in the New World besides the mining royalties were: the tribute, or poll-tax, paid by the male Indians of working
p240age, roughly equal in the later period to about $2.25 per capita annually; the alcabala, or excise levied on goods sold, varying from two to six per cent; the almojarifazgo, or export and import duties, averaging perhaps fifteen per cent; the averia, or convoy tax, equalling about two per cent on the value of the cargoes; the receipts from the sale of offices; the receipts from the sale of the bulls of the crusade — i.e., indulgences; monopolies of gunpowder, salt, tobacco, and quicksilver, and a portion of the church income. The taxes were, as a whole, much the same as those in Spain.66 In 1746 the total revenue of New Spain was estimated at 3,552,680 pesos.67 A little less than half a century later, 1796, it had risen to $19,400,000,68 of which probably $3,500,00069 represents the king's mining royalties, leaving about $16,000,000 from taxation from a population of about five million — certainly not an oppressive amount, especially when we consider the great wealth among the Spaniards, who constituted about one-fifth of the population.

The burden bore unequally heavy on the Indians, who as a class were poor and could not escape the tribute or the indulgences. Financial corruption
p241no doubt absorbed a large amount which was collected but which did not appear in the returns; yet, all in all, it does not seem that the Spanish government can be charged with exploiting the colonial population by oppressive taxes. The real burden which lay upon them was not that of intentional oppression, but that of unintelligent commercial legislation, which sacrificed the colonial opportunities to the protection of the manufactures and trade of Spain. A vastly larger sum could easily have been borne if the unproductive restrictions of the trade legislation had been relaxed earlier and more completely.

Another indication that the colonies suffered from lack of opportunities rather than from extortion is afforded by the fact that fertile regions of great natural advantages never produced revenue enough to pay the expenses of government. The Philippines, Cuba, and the other islands, Venezuela before the establishment of the Guipuzcoa commercial company, Florida, and Louisiana after 1765, were all subsidized from the treasury of New Spain to an amount of between three and four million dollars a year.70 Peru, in her turn, contributed one hundred thousand pesos to Chili and seventy thousand to Valdivia.71 If it had not been for the mines it is probable that Spain could neither have formed nor maintained her American empire under any such
p242commercial policy as she pursued. Her transatlantic establishments would have been feeble and of slow growth, and very likely South and Central America would have waited as long as North America for effective occupation, which then might have been accomplished by Spain's later and more powerful rivals.

Without a prolonged and detailed discussion it would be difficult to reach a general conclusion on the government and administration of South America. Severe judgments have been passed upon it. Justice was slow and uncertain; the evidence of financial corruption, especially of bribery of judges and custom-house officials, is abundant; but, after all, the general impression derived from the narratives of English residents in New Spain and other early travellers is that they observed no particular contrast between governmental conditions in Europe and America. It is the opinion of the writer that, all things considered, Spanish America was quite as well governed as was Spain, and was, on the whole, more prosperous; that the condition of Peru and the rest of South America was below that of New Spain in many respects; and that at no time in the history of Mexico, up to within the last quarter of a century, has the government been so good as her people enjoyed under the abler viceroys such as Mendoza of Velasco in the beginning, or the younger Revillagigedo at the end of Spanish rule.

49Recopilacion de Leyes, lib. V, tit. II, ley 1. As the encomienda system was abolished the Indians were placed under a corregidor, who was a sort of Indian superintendent, ibid., ley 3; H. H. Bancroft, Mexico, II, 329. The alcalde mayor was a district or county magistrate, sometimes a local governor, ibid., 520.

50Recopilacion de Leyes, lib. V, tit. II, ley 4. In 1786 the local government was reorganized and the viceroyalties and captaincies-general were subdivided into intendencias. The corregidors and alcaldes mayores were then displaced by the subdelegados of the intendants, H. H. Bancroft, Mexico, III, 520.